NOTICE: This opinion is subject to formal revision before publication
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on appeal from the united states district court for the district of
columbia

[March 31, 1997]

Justice Kennedy
delivered the opinion of the Court, except as to a portion of Part II A
1.

Sections 4 and 5 of the Cable Television Consumer Protection and
Competition Act of 1992 require cable television systems to dedicate some
of their channels to local broadcast television stations. Earlier in this
case, we held the so called "must carry" provisions to be content neutral
restrictions on speech, subject to intermediate First
Amendment scrutiny under United States v. O'Brien,391
U.S. 367, 377 (1968). A plurality of the Court considered the record
as then developed insufficient to determine whether the provisions were
narrowly tailored to further important governmental interests, and we remanded
the case to the District Court for the District of Columbia for additional
factfinding.

On appeal from the District Court's grant of summary judgment
for appellees, the case now presents the two questions left open during
the first appeal: First, whether the record as it now stands supports Congress'
predictive judgment that the must carry provisions further important governmental
interests; and second, whether the provisions do not burden substantially
more speech than necessary to further those interests. We answer both questions
in the affirmative, and conclude the must carry provisions are consistent
with the First Amendment.

An outline of the Cable Act, Congress' purposes in adopting it, and
the facts of the case are set out in detail in our first opinion, see Turner
Broadcasting System, Inc. v. FCC,512
U.S. 622 (1994) (Turner), and a more abbreviated summary will
suffice here. Soon after Congress enacted the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460
(Cable Act), appellants brought suit against the United States and the
Federal Communications Commission (both referred to here as the Government)
in the United States District Court for the District of Columbia, challenging
the constitutionality of the must carry provisions under the First
Amendment. The three judge District Court, in a divided opinion, granted
summary judgment for the Government and intervenor defendants. A majority
of the court sustained the must carry provisions under the intermediate
standard of scrutiny set forth in United States v. O'Brien,supra, concluding the must carry provisions were content neutral
"industry specific antitrust and fair trade" legislation narrowly tailored
to preserve local broadcasting beset by monopoly power in most cable systems,
growing concentration in the cable industry, and concomitant risks of programming
decisions driven by anticompetitive policies. 819 F. Supp. 32, 40, 45-47
(DC 1993).

On appeal, we agreed with the District Court that must carry does
not "distinguish favored speech from disfavored speech on the basis of
the ideas or views expressed," 512 U. S., at 643, but is a content neutral
regulation designed "to prevent cable operators from exploiting their economic
power to the detriment of broadcasters," and "to ensure that all Americans,
especially those unable to subscribe to cable, have access to free television
programming--whatever its content." Id., at 649. We held that, under
the intermediate level of scrutiny applicable to content neutral regulations,
must carry would be sustained if it were shown to further an important
or substantial governmental interest unrelated to the suppression of free
speech, provided the incidental restrictions did not "burden substantially
more speech than is necessary to further" those interests. Id.,
at 662 (quoting Ward v. Rock Against Racism,491
U.S. 781, 799 (1989)). Although we "ha[d] no difficulty concluding"
the interests must carry was designed to serve were important in the abstract,
512 U. S., at 663, a four Justice plurality concluded genuine issues of
material fact remained regarding whether "the economic health of local
broadcasting is in genuine jeopardy and need of the protections afforded
by must carry," and whether must carry " `burden[s] substantially more
speech than is necessary to further the government's legitimate interests.'
" Id., at 665 (quoting Ward, supra, at 799). Justice Stevens
would have found the statute valid on the record then before us; he agreed
to remand the case to ensure a judgment of the Court, and the case was
returned to the District Court for further proceedings. 512 U. S., at 673-674
(Stevens, J., concurring in part and concurring in judgment); id.,
at 667-668.

The District Court oversaw another 18 months of factual development
on remand "yielding a record of tens of thousands of pages" of evidence,
Turner Broadcasting v. FCC, 910 F. Supp. 734, 755 (DC 1995),
comprised of materials acquired during Congress' three years of pre-enactment
hearings, see Turner, supra, at 632-634, as well as additional expert
submissions, sworn declarations and testimony, and industry documents obtained
on remand. Upon consideration of the expanded record, a divided panel of
the District Court again granted summary judgment to appellees. 910 F.
Supp., at 751. The majority determined "Congress drew reasonable inferences"
from substantial evidence before it to conclude that "in the absence of
must carry rules, `significant' numbers of broadcast stations would be
refused carriage." Id., at 742. The court found Congress drew on
studies and anecdotal evidence indicating "cable operators had already
dropped, refused to carry, or adversely repositioned significant numbers
of local broadcasters," and suggesting that in the vast majority of cases
the broadcasters were not restored to carriage in their prior position.
Ibid. Noting evidence in the record before Congress and the testimony
of experts on remand, id., at 743, the court decided the noncarriage
problem would grow worse without must carry because cable operators had
refrained from dropping broadcast stations during Congress' investigation
and the pendency of this litigation, id., at 742-743, and possessed
increasing incentives to use their growing economic power to capture broadcasters'
advertising revenues and promote affiliated cable programmers. Ibid.
The court concluded "substantial evidence before Congress" supported the
predictive judgment that a local broadcaster denied carriage "would suffer
financial harm and possible ruin." Id., at 743-744. It cited evidence
that adverse carriage actions decrease broadcasters' revenues by reducing
audience levels, id., at 744-745, and evidence that the invalidation
of the FCC's prior must carry regulations had contributed to declining
growth in the broadcast industry. Id., at 744, and n. 34.

The court held must carry to be narrowly tailored to promote the
Government's legitimate interests. It found the effects of must carry on
cable operators to be minimal, noting evidence that: most cable systems
had not been required to add any broadcast stations since the rules were
adopted; only 1.2 percent of all cable channels had been devoted to broadcast
stations added because of must carry; and the burden was likely to diminish
as channel capacity expanded in the future. Id., at 746-747. The
court proceeded to consider a number of alternatives to must carry that
appellants had proposed, including: a leased access regime, under which
cable operators would be required to set aside channels for both broadcasters
and cable programmers to use at a regulated price; use of so called A/B
switches, giving consumers a choice of both cable and broadcast signals;
a more limited set of must carry obligations modeled on those earlier used
by the FCC; and subsidies for broadcasters. The court rejected each in
turn, concluding that "even assuming that [the alternatives] would be less
burdensome" on cable operators' First
Amendment interests, they "are not in any respect as effective in achieving
the government's [interests]." Id., at 747. Judge Jackson would
have preferred a trial to summary judgment, but concurred in the judgment
of the court. Id., at 751-754.

Judge Williams dissented. His review of the record, and particularly
evidence concerning growth in the number of broadcasters, industry advertising
revenues, and per station profits during the period without must carry,
led him to conclude the broadcast industry as a whole would not be " `seriously
jeopardized' " in the absence of must carry. Id., at 759-767. Judge
Williams acknowledged the Government had a legitimate interest in preventing
anticompetitive behavior, and accepted that cable operators have incentives
to discriminate against broadcasters in favor of their own vertically integrated
cable programming. Id., at 772, 775, 779. He would have granted
summary judgment for appellants nonetheless on the ground must carry is
not narrowly tailored. In his view, must carry constitutes a significant
(though "diminish[ing]," id., at 782) burden on cable operators'
and programmers' rights, ibid., and the Cable Act's must carry provisions
suppress more speech than necessary because "less restrictive" alternatives
exist to accomplish the Government's legitimate objectives. Id.,
at 782-789.

We begin where the plurality ended in Turner, applying the standards
for intermediate scrutiny enunciated in O'Brien. A content neutral
regulation will be sustained under the First
Amendment if it advances important governmental interests unrelated
to the suppression of free speech and does not burden substantially more
speech than necessary to further those interests. O'Brien, 391 U.
S., at 377. As noted in Turner, must carry was designed to serve
"three interrelated interests: (1) preserving the benefits of free, over
the air local broadcast television, (2) promoting the widespread dissemination
of information from a multiplicity of sources, and (3) promoting fair competition
in the market for television programming." 512 U. S., at 662. We decided
then, and now reaffirm, that each of those is an important governmental
interest. We have been most explicit in holding that " `protecting noncable
households from loss of regular television broadcasting service due to
competition from cable systems' is an important federal interest." Id.,
at 663 (quoting Capital Cities Cable, Inc. v. Crisp,467
U.S. 691, 714 (1984)). Forty percent of American households continue
to rely on over the air signals for television programming. Despite the
growing importance of cable television and alternative technologies, "
`broadcasting is demonstrably a principal source of information and entertainment
for a great part of the Nation's population.' " Turner, supra, at
663 (quoting United States v. Southwestern Cable Co.,392
U.S. 157, 177 (1968)). We have identified a corresponding "governmental
purpose of the highest order" in ensuring public access to "a multiplicity
of information sources," 512 U. S., at 663. And it is undisputed the Government
has an interest in "eliminating restraints on fair competition . . ., even
when the individuals or entities subject to particular regulations are
engaged in expressive activity protected by the First Amendment." Ibid.

On remand, and again before this Court, both sides have advanced
new interpretations of these interests in an attempt to recast them in
forms "more readily proven." 910 F. Supp., at 759 (Williams, J., dissenting).
The Government downplays the importance of showing a risk to the broadcast
industry as a whole and suggests the loss of even a few broadcast stations
"is a matter of critical importance." Tr. of Oral Arg. 23. Taking the opposite
approach, appellants argue Congress' interest in preserving broadcasting
is not implicated unless it is shown the industry as a whole would fail
without must carry, Brief for Appellant National Cable Television Association,
Inc. 18-23 (NCTA Brief), Brief for Appellant Time Warner Entertainment
Co., L. P. 8-10 (Time Warner Brief), and suggest Congress' legitimate interest
in "assuring that the public has access to a multiplicity of information
sources," Turner, supra, at 663, extends only as far as preserving
"a minimum amount of television broadcast service." Time Warner Brief 28;
NCTA Brief 40; Reply Brief for Appellant NCTA 12.

These alternative formulations are inconsistent with Congress'
stated interests in enacting must carry. The congressional findings do
not reflect concern that, absent must carry, "a few voices," Tr. of Oral
Arg. 23, would be lost from the television marketplace. In explicit factual
findings, Congress expressed clear concern that the "marked shift in market
share from broadcast television to cable television services," Cable Act
§2(a)(13), note following 47
U.S.C. § 521 resulting from increasing market penetration by cable
services, as well as the expanding horizontal concentration and vertical
integration of cable operators, combined to give cable systems the incentive
and ability to delete, reposition, or decline carriage to local broadcasters
in an attempt to favor affiliated cable programmers. §§2a(2)
(5), (15). Congress predicted that "absent the reimposition of [must carry],
additional local broadcast signals will be deleted, repositioned, or not
carried" (§2(a)(15); see also §2(a)(8)(D)), with the end result
that "the economic viability of free local broadcast television and its
ability to originate quality local programming will be seriously jeopardized."
§2(a)(16).

At the same time, Congress was under no illusion that there would
be a complete disappearance of broadcast television nationwide in the absence
of must carry. Congress recognized broadcast programming (and network programming
in particular) "remains the most popular programming on cable systems,"
§2(a)(19). Indeed, reflecting the popularity and strength of some
broadcasters, Congress included in the Cable Act a provision permitting
broadcasters to charge cable systems for carriage of the broadcasters'
signals. See §6, codified at 47
U.S.C. § 325. Congress was concerned not that broadcast television
would disappear in its entirety without must carry, but that without it,
"significant numbers of broadcast stations will be refused carriage on
cable systems," and those "broadcast stations denied carriage will either
deteriorate to a substantial degree or fail altogether." 512 U. S., at
666. See, e.g., H. R. Rep. No. 102-628, p. 51 (1992) (House Report)
(the absence of must carry "will result in a weakening of the over the
air television industry and a reduction in competition"); id., at
64 ("The Committee wishes to make clear that its concerns are not limited
to a situation where stations are dropped wholesale by large numbers of
cable systems"); S. Rep. No. 102-92, p. 62 (1991) (Senate Report) ("Without
congressional action, . . . the role of local television broadcasting in
our system of communications will steadily decline . . ."); see also Brief
for Federal Appellees in Turner Broadcasting System, Inc. v. FCC,
No. 93-44, p. 32, n. 22 (the question is not whether "the evidence shows
that broadcast television is likely to be totally eliminated" but "whether
the broadcast services available to viewers [without cable] . . . are likely
to be reduced to a significant extent, because of either loss of some stations
altogether or curtailment of services by others").

Nor do the congressional findings support appellants' suggestion
that legitimate legislative goals would be satisfied by the preservation
of a rump broadcasting industry providing a minimum of broadcast service
to Americans without cable. We have noted that " `it has long been a basic
tenet of national communications policy that "the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public." ' " Turner, 512 U. S., at 663-664 (quoting
United States v. Midwest Video Corp.,406
U.S. 649, 668, n. 27 (1972) (plurality opinion) (quoting Associated
Press v. United States,326
U.S. 1, 20 (1945)); see also FCC v. WNCN Listeners Guild,450
U.S. 582, 594 (1981). " `[I]ncreasing the number of outlets for community
self expression' " represents a " `long established regulatory goa[l] in
the field of television broadcasting.' " United States v. Midwest
Video Corp., supra, at 667-668 (plurality opinion). Consistent with
this objective, the Cable Act's findings reflect a concern that congressional
action was necessary to prevent "a reduction in the number of media voices
available to consumers." §2(a)(4). Congress identified a specific
interest in "ensuring [the] continuation" of "the local origination of
[broadcast] programming," §2(a)(10), an interest consistent with its
larger purpose of promoting multiple types of media, §2(a)(6), and
found must carry necessary "to serve the goals" of the original Communications
Act of 1934 of "providing a fair, efficient, and equitable distribution
of broadcast services" (§2(a)(9)). In short, Congress enacted must
carry to "preserve the existing structure of the Nation's broadcast television
medium while permitting the concomitant expansion and development of cable
television." 512 U. S., at 652.

Although Congress set no definite number of broadcast stations
sufficient for these purposes, the Cable Act's requirement that all cable
operators with more than 12 channels set aside one third of their channel
capacity for local broadcasters, §4, 47
U.S.C. § 534(b)(1)(B), refutes the notion that Congress contemplated
preserving only a bare minimum of stations. Congress' evident interest
in "preserv[ing] the existing structure," 512 U. S., at 652, of the broadcast
industry discloses a purpose to prevent any significant reduction in the
multiplicity of broadcast programming sources available to noncable households.
To the extent the appellants question the substantiality of the Government's
interest in preserving something more than a minimum number of stations
in each community, their position is meritless. It is for Congress to decide
how much local broadcast television should be preserved for noncable households,
and the validity of its determination " `does not turn on a judge's agreement
with the responsible decisionmaker concerning' . . . the degree to which
[the Government's] interests should be promoted." Ward, 491 U. S.,
at 800 (quoting United States v. Albertini,472
U.S. 675, 689 (1985)); accord, Clark v. Community for Creative
Non Violence,468
U.S. 288, 299 (1984) ("We do not believe . . . [that] United States
v. O'Brien . . . endow[s] the judiciary with the competence to judge
how much protection of park lands is wise").

The dissent proceeds on the assumption that must carry is designed
solely to be (and can only be justified as) a measure to protect broadcasters
from cable operators' anticompetitive behavior. See post, at 24,
26, 32. Federal policy, however, has long favored preserving a multiplicity
of broadcast outlets regardless of whether the conduct that threatens it
is motivated by anticompetitive animus or rises to the level of an antitrust
violation. See Capital Cities Cable, Inc. v. Crisp, 467 U.
S., at 714; United States v. Midwest Video Corp., supra,
at 665 (plurality opinion) (FCC regulations "were . . . avowedly designed
to guard broadcast services from being undermined by unregulated [cable]
growth"); National Broadcasting Co. v. United States,319
U.S. 190, 223-224 (1943) (" `While many of the network practices raise
serious questions under the antitrust laws, . . . [i]t is not [the FCC's]
function to apply the antitrust laws as such' ") (quoting FCC Report on
Chain Broadcasting Regulations (1941)). Broadcast television is an important
source of information to many Americans. Though it is but one of many means
for communication, by tradition and use for decades now it has been an
essential part of the national discourse on subjects across the whole broad
spectrum of speech, thought, and expression. See Turner, supra,
at 663; FCC v. National Citizens Committee for Broadcasting,436
U.S. 775, 783 (1978) (referring to studies "showing the dominant role
of television stations . . . as sources of local news and other information").
Congress has an independent interest in preserving a multiplicity of broadcasters
to ensure that all households have access to information and entertainment
on an equal footing with those who subscribe to cable.

On our earlier review, we were constrained by the state of the record
to assessing the importance of the Government's asserted interests when
"viewed in the abstract," Turner, 512 U. S., at 663. The expanded
record now permits us to consider whether the must carry provisions were
designed to address a real harm, and whether those provisions will alleviate
it in a material way. Id., at 663-664. We turn first to the harm
or risk which prompted Congress to act. The Government's assertion that
"the economic health of local broadcasting is in genuine jeopardy and in
need of the protections afforded by must carry," id., at 664-665,
rests on two component propositions: First, "significant numbers of broadcast
stations will be refused carriage on cable systems" absent must-carry,
id., at 666. Second, "the broadcast stations denied carriage will
either deteriorate to a substantial degree or fail altogether." Ibid.

In reviewing the constitutionality of a statute, "courts must
accord substantial deference to the predictive judgments of Congress."
Id., at 665. Our sole obligation is "to assure that, in formulating
its judgments, Congress has drawn reasonable inferences based on substantial
evidence." Id., at 666. As noted in the first appeal, substantiality
is to be measured in this context by a standard more deferential than we
accord to judgments of an administrative agency. See id., at 666-667;
id., at 670, n. 1 (Stevens, J., concurring in part and concurring
in judgment). We owe Congress' findings deference in part because the institution
"is far better equipped than the judiciary to `amass and evaluate the vast
amounts of data' bearing upon" legislative questions. Turner, supra,
at 665-666 (plurality opinion) (quoting Walters v. National Assn.
of Radiation Survivors,473
U.S. 305, 331, n. 12 (1985)); Ward, 491 U. S., at 800; Rostker
v. Goldberg,453
U.S. 57, 83 (1981) (courts must perform "appropriately deferential
examination of Congress' evaluation of th[e] evidence"); Columbia
Broadcasting System, Inc. v. Democratic National Committee,412
U.S. 94, 103 (1973). This principle has special significance in cases,
like this one, involving congressional judgments concerning regulatory
schemes of inherent complexity and assessments about the likely interaction
of industries undergoing rapid economic and technological change. Though
different in degree, the deference to Congress is in one respect akin to
deference owed to administrative agencies because of their expertise. See
FCC v. National Citizens Comm. for Broadcasting,436
U.S. 775, 814 (1978) ("[C]omplete factual support in the record for
the [FCC's] judgment or prediction is not possible or required; `a forecast
of the direction in which future public interest lies necessarily involves
deductions based on the expert knowledge of the agency' "); United States
v. Midwest Video Corp., 406 U. S., at 674 (it was "beyond the competence
of the Court of Appeals itself to assess the relative risk and benefits"
of FCC policy, so long as that policy was based on findings supported by
evidence). This is not the sum of the matter, however. We owe Congress'
findings an additional measure of deference out of respect for its authority
to exercise the legislative power. Even in the realm of First
Amendment questions where Congress must base its conclusions upon substantial
evidence, deference must be accorded to its findings as to the harm to
be avoided and to the remedial measures adopted for that end, lest we infringe
on traditional legislative authority to make predictive judgments when
enacting nationwide regulatory policy.

We have no difficulty in finding a substantial basis to support Congress'
conclusion that a real threat justified enactment of the must carry provisions.
We examine first the evidence before Congress and then the further evidence
presented to the District Court on remand to supplement the congressional
determination.

As to the evidence before Congress, there was specific support
for its conclusion that cable operators had considerable and growing market
power over local video programming markets. Cable served at least 60 percent
of American households in 1992, see Cable Act §2(a)(3), and evidence
indicated cable market penetration was projected to grow beyond 70 percent.
See Cable TV Consumer Protection Act of 1991: Hearing on S. 12 before the
Subcommittee on Communications of the Senate Committee on Commerce, Science,
and Transportation, 102d Cong., 1st Sess., 259 (1991) (statement of Edward
O. Fritts) (App. 1253); see also Defendants' Joint Statement of Evidence
Before Congress ¶¶9, 10 (JSCR) (App. 1252-1253). As Congress
noted (§2(a)(2)), cable operators possess a local monopoly over cable
households. Only one percent of communities are served by more than one
cable system, JSCR ¶¶31-40 (App. 1262-1266). Even in communities
with two or more cable systems, in the typical case each system has a local
monopoly over its subscribers. See Comments of NAB before the FCC on MM
Docket No. 85-349, ¶47 (April 25, 1986) (App. 26). Cable operators
thus exercise "control over most (if not all) of the television programming
that is channeled into the subscriber's home. . . . [and] can thus silence
the voice of competing speakers with a mere flick of the switch." Turner,
512 U. S., at 656.

Evidence indicated the structure of the cable industry would give
cable operators increasing ability and incentive to drop local broadcast
stations from their systems, or reposition them to a less viewed channel.
Horizontal concentration was increasing as a small number of multiple system
operators (MSO's) acquired large numbers of cable systems nationwide. §2(a)(4).
The trend was accelerating, giving the MSO's increasing market power. In
1985, the 10 largest MSO's controlled cable systems serving slightly less
than 42 percent of all cable subscribers; by 1989, the figure was nearly
54 percent. JSCR ¶77 (App. 1282); Competitive Problems in the Cable
Television Industry, Hearing before the Subcommittee on Antitrust, Monopolies
and Business Rights of the Senate Committee on the Judiciary, 101st Cong.,
1st Sess., 74 (1990) (Hearing on Competitive Problems in the Cable Television
Industry) (statement of Gene Kimmelman and Dr. Mark N. Cooper).

Vertical integration in the industry also was increasing. As Congress
was aware, many MSO's owned or had affiliation agreements with cable programmers.
§2(a)(5); Senate Report, at 24-29. Evidence indicated that before
1984 cable operators had equity interests in 38 percent of cable programming
networks. In the late 1980's, 64 percent of new cable programmers were
held in vertical ownership. JSCR ¶197 (App. 1332-1333). Congress concluded
that "vertical integration gives cable operators the incentive and ability
to favor their affiliated programming services" (§2(a)(5); Senate
Report, at 25) a conclusion that even Judge Williams' dissent conceded
to be reasonable. See 910 F. Supp., at 775. Extensive testimony indicated
that cable operators would have an incentive to drop local broadcasters
and to favor affiliated programmers. See, e.g., Competitive Issues
in the Cable Television Industry: Hearing before the Subcommittee on Antitrust,
Monopolies and Business Rights of the Senate Committee on the Judiciary,
100th Cong., 2d Sess., 546 (1988) (Hearing on Competitive Issues) (statement
of Milton Maltz); Cable Television Regulation: Hearings on H. R. 1303 and
H. R. 2546 before the Subcommittee on Telecommunications and Finance of
the House Committee on Energy and Commerce, 102d Cong., 1st Sess., 869-870,
878-879 (Hearings on Cable Television Regulation) (statement of James B.
Hedlund); id., at 752 (statement of Edward O. Fritts); id.,
at 699 (statement of Gene Kimmelman); Cable Television Regulation (Part
2): Hearings before the Subcommittee on Telecommunications and Finance
of the House Committee on Energy and Commerce, 101st Cong., 2d Sess., 261
(1990) (Hearings on Cable Television Regulation (Part 2)) (statement of
Robert G. Picard) (App. 1339-1341); see also JSCR ¶¶168-170,
278-280 (App. 1320-1321, 1370-1371).

Though the dissent criticizes our reliance on evidence provided to Congress
by parties that are private appellees here, post, at 10, that argument
displays a lack of regard for Congress' factfinding function. It is the
nature of the legislative process to consider the submissions of the parties
most affected by legislation. Appellants too sent representatives before
Congress to try to persuade them of their side of the debate. See, e.g.,
Hearing on Competitive Problems in the Cable Television Industry, at 228-241
(statement of James P. Mooney, president and CEO of appellant NCTA); Hearings
on Cable Television Regulation, at 575-582 (statement of Decker S. Anstrom,
executive vice president of appellant NCTA); Cable TV Consumer Protection
Act of 1991: Hearing on S. 12 before the Subcommittee on Communications
of the Senate Committee on Commerce, Science, and Transportation, 102d
Cong., 1st Sess., 173-180 (1991) (statement of Ted Turner, president of
appellant Turner Broadcasting System). After hearing years of testimony,
and reviewing volumes of documentary evidence and studies offered by both
sides, Congress concluded that the cable industry posed a threat to broadcast
television. The Constitution gives to Congress the role of weighing conflicting
evidence in the legislative process. Even when the resulting regulation
touches on First
Amendment concerns, we must give considerable deference, in examining
the evidence, to Congress' findings and conclusions, including its findings
and conclusions with respect to conflicting economic predictions. See supra,
at ". Furthermore, much of the testimony, though offered by interested
parties, was supported by verifiable information and citation to independent
sources. See, e.g., Hearings on Cable Television Regulation, at
869-870, 878-879 (statement of James B. Hedlund); id., at 705, 707-708,
712 (statement of Gene Kimmelman).

In addition, evidence before Congress, supplemented on remand,
indicated that cable systems would have incentives to drop local broadcasters
in favor of other programmers less likely to compete with them for audience
and advertisers. Independent local broadcasters tend to be the closest
substitutes for cable programs, because their programming tends to be similar,
see JSCR ¶¶269, 274, 276 (App. 1367, 1368-1370), and because
both primarily target the same type of advertiser: those interested in
cheaper (and more frequent) ad spots than are typically available on network
affiliates. Second Declaration of Tom Meek ¶32 (Second Meek Declaration)
(App. 1866); Reply Declaration of James N. Dertouzos ¶26 (App. 2023);
Carriage of Television Broadcast Signals by Cable Television Systems, Reply
Comment of the Staff of the Bureau of Economics and the San Francisco Regional
Office of the Federal Trade Commission, p. 19 (Nov. 26, 1991) (Reply Comment
of FTC) (App. 176). The ability of broadcast stations to compete for advertising
is greatly increased by cable carriage, which increases viewership substantially.
See Second Meek Declaration ¶34 (App. 1866-1867). With expanded viewership,
broadcast presents a more competitive medium for television advertising.
Empirical studies indicate that cable carried broadcasters so enhance competition
for advertising that even modest increases in the numbers of broadcast
stations carried on cable are correlated with significant decreases in
advertising revenue to cable systems. Dertouzos Declaration ¶20, 25-28
(App. 966, 969-971); see also Reply Comment of FTC, at 18 (App. 175). Empirical
evidence also indicates that demand for premium cable services (such as
pay per view) is reduced when a cable system carries more independent broadcasters.
Hearing on Competitive Problems in the Cable Television Industry, at 323
(statement of Michael O. Wirth). Thus, operators stand to benefit by dropping
broadcast stations. Dertouzos Declaration ¶6b (App. 959).

Cable systems also have more systemic reasons for seeking to disadvantage
broadcast stations: Simply stated, cable has little interest in assisting,
through carriage, a competing medium of communication. As one cable industry
executive put it, " `our job is to promote cable television, not broadcast
television.' " Hearing on Competitive Issues, at 658 (quoting Multichannel
News, Channel Realignments: United Cable Eyes Plan to Bump Network Affils
to Upper Channels, Nov. 3, 1986, p. 39); see also id., at 661 ("
`Shouldn't we give more . . . shelf space to cable? Why have people trained
to view UHF?' ") (vice president of operations at Comcast, an MSO, quoted
in Multichannel News, Cable Operators begin to Shuffle Channel Lineups,
Sept. 8, 1986, p. 38)). The incentive to subscribe to cable is lower in
markets with many over the air viewing options. See JSCR ¶275 (App.
1369); Dertouzos Declaration ¶¶27, 32 (App. 970, 972). Evidence
adduced on remand indicated cable systems have little incentive to carry,
and a significant incentive to drop, broadcast stations that will only
be strengthened by access to the 60% of the television market that cable
typically controls. Dertouzos Declaration ¶¶ 29, 35 (App. 971,
973); Noll Declaration ¶43 (App. 1029). Congress could therefore reasonably
conclude that cable systems would drop broadcasters in favor of programmers--even
unaffiliated ones--less likely to compete with them for audience and advertisers.
The cap on carriage of affiliates included in the Cable Act, 47
U.S.C. § 533(f)(1)(B); 47
CFR § 76.504) (1995), and relied on by the dissent, post,
at 11, 25, is of limited utility in protecting broadcasters.

The dissent contends Congress could not reasonably conclude cable
systems would engage in such predation because cable operators, whose primary
source of revenue is subscriptions, would not risk dropping a widely viewed
broadcast station in order to capture advertising revenues. Post,
at 12. However, if viewers are faced with the choice of sacrificing a handful
of broadcast stations to gain access to dozens of cable channels (plus
network affiliates), it is likely they would still subscribe to cable even
if they would prefer the dropped television stations to the cable programming
that replaced them. Substantial evidence introduced on remand bears this
out: With the exception of a handful of very popular broadcast stations
(typically network affiliates), a cable system's choice between carrying
a cable programmer or broadcast station has little or no effect on cable
subscriptions, and subscribership thus typically does not bear on carriage
decisions. Noll Declaration ¶29 (App. 1018-1019); Rebuttal Declaration
of Roger G. Noll ¶20 (App. 1798); Reply Declaration of Roger G. Noll
¶¶3-4, and n. 3 (App. 2003-2004); see also Declaration of John
R. Haring ¶37 (Haring Declaration) (App. 1106).

It was more than a theoretical possibility in 1992 that cable
operators would take actions adverse to local broadcasters; indeed, significant
numbers of broadcasters had already been dropped. The record before Congress
contained extensive anecdotal evidence about scores of adverse carriage
decisions against broadcast stations. See JSCR ¶¶291-467, 664
(App. 1376-1489, 1579). Congress considered an FCC sponsored study detailing
cable system carriage practices in the wake of decisions by the United
States Court of Appeals for the District of Columbia Circuit striking down
prior must carry regulations. See Quincy Cable TV, Inc. v. FCC,
768 F. 2d 1434 (1985), cert. denied, 476
U.S. 1169 (1986); Century Communications Corp. v. FCC,
835 F. 2d 292 (1987), cert. denied, 486
U.S. 1032 (1988). It indicated that in 1988, 280 out of 912 responding
broadcast stations had been dropped or denied carriage in 1,533 instances.
App. 47. Even assuming that every station dropped or denied coverage responded
to the survey, it would indicate that nearly a quarter (21 percent) of
the approximately 1,356 broadcast stations then in existence, id.,
at 40, had been denied carriage. The same study reported 869 of 4,303 reporting
cable systems had denied carriage to 704 broadcast stations in 1,820 instances,
id., at 48, and 279 of those stations had qualified for carriage
under the prior must carry rules. Id., at 49. A contemporaneous
study of public television stations indicated that in the vast majority
of cases, dropped stations were not restored to the cable service. Record,
CR Vol. I.Z., Exh. 140, pp. CR 15297-15298, 15306-15307.

Substantial evidence demonstrated that absent must carry the already
"serious," Senate Report, at 43, problem of noncarriage would grow worse
because "additional local broadcast signals will be deleted, repositioned,
or not carried," §2(a)(15). The record included anecdotal evidence
showing the cable industry was acting with restraint in dropping broadcast
stations in an effort to discourage reregulation. See Hearings on Cable
Television Regulation, at 900, n. 81 (statement of James B. Hedlund); Hearings
on Cable Television Regulation (Part 2), at 242-243 (statement of James
P. Mooney) (App. 1519); JSCR ¶¶524-534 (App. 1515-1519)). There
was also substantial evidence that advertising revenue would be of increasing
importance to cable operators as subscribership growth began to flatten,
providing a steady, increasing incentive to deny carriage to local broadcasters
in an effort to capture their advertising revenue. Id., ¶¶124-142,
154-166 (App. 1301-1308, 1313-1319). A contemporaneous FCC report noted
that "[c]able operators' incentive to deny carriage . . . appears to be
particularly great as against local broadcasters." Id., ¶155
(App. 1313). Then FCC Commissioner James Quello warned Congress that the
carriage problems "occurring today are just the `tip of the iceberg.' These
activities come at a time when the cable industry is just beginning to
recognize the importance of local advertising." Cable Television, Hearings
before the Subcommittee on Telecommunications and Finance of the House
Committee on Energy and Commerce, 100th Cong., 2d Sess., 322 (1988) (App.
1515). Quello continued: "As [cable] systems mature and penetration levels
off, systems will turn increasingly to advertising for revenues. The incentive
to deny carriage to local stations is a logical, rational and, without
must carry, a legal business strategy." Appendix A to Testimony of James
B. Hedlund before the Subcommittee on Telecommunications and Finance of
the House Committee on Energy & Commerce, 18 (1990) (statement of James
H. Quello) (App. 1315). The FCC advised Congress the "diversity in broadcast
television service . . . will be jeopardized if this situation continues
unredressed." In re Competition, Rate Regulation, and Provision of Cable
Television Service, 5 FCC Rcd 4962, 5040, ¶149 (1990).

Additional evidence developed on remand supports the reasonableness
of Congress' predictive judgment. Approximately 11 percent of local broadcasters
were not carried on the typical cable system in 1989. See Reply Comment
of FTC, pp. 9-10 (App. 168-169). The figure had grown to even more significant
proportions by 1992. According to one of appellants' own experts, between
19 and 31 percent of all local broadcast stations, including network affiliates,
were not carried by the typical cable system. See Declaration of Stanley
Besen, Exhs. C-2, C-3 (App. 907-908). Based on the same data, another expert
concluded that 47 percent of local independent commercial stations, and
36 percent of noncommercial stations, were not carried by the typical cable
system. The rate of noncarriage was even higher for new stations. Third
Meek Declaration ¶4 (App. 2054). Appellees introduced evidence drawn
from an empirical study concluding the 1988 FCC survey substantially underestimated
the actual number of drops (Declaration of Tom Meek ¶¶5, 25,
36 (Meek Declaration) (App. 619, 625, 626)), and the noncarriage problem
grew steadily worse during the period without must carry. By the time the
Cable Act was passed, 1,261 broadcast stations had been dropped for at
least one year, in a total of 7,945 incidents. Id., ¶¶12,
15 (App. 621, 622).

The dissent cites evidence indicating that many dropped broadcasters
were stations few viewers watch, post, at 15, and it suggests that
must carry thwarts noncable viewers' preferences. Ibid. Undoubtedly,
viewers without cable--the immediate, though not sole, beneficiaries of
efforts to preserve broadcast television--would have a strong preference
for carriage of any broadcast program over any cable program, for the simple
reason that it helps to preserve a medium to which they have access. The
methodological flaws in the cited evidence are of concern. See post,
at 16. Even aside from that, the evidence overlooks that the broadcasters
added by must carry had ratings greater than or equal to the cable programs
they replaced. Second Meek Declaration ¶23 (App. 1863) (ratings of
broadcasters added by must carry "are generally higher than that achieved
. . . by their equivalent cable counterparts"); Meek Declaration ¶21,
at 11-12 (Record, DAE, Vol. II.A., Exh. 2); see also Hearings on Cable
Television Regulation, at 880 (statement of James Hedlund) ("in virtually
every instance, the local [broadcast] stations shifted are more popular
. . . than the cable program services that replace them"); JSCR ¶¶
497-510 (App. 1505-1509) (stations dropped before must carry generally
more popular than cable services that replaced them). (Indeed, in the vast
majority of cases, cable systems were able to fulfill their must carry
obligations using spare channels, and did not displace cable programmers.
See Report to Counsel for National Cable Television Association Carriage
of Must Carry TV Broadcast Stations, Table II-4 (April 1995) (App. 678).)
On average, even the lowest rated station added pursuant to must carry
had ratings better than or equal to at least nine basic cable program services
carried on the system. Third Meek Declaration ¶20, and n. 5 (App.
2061). If cable systems refused to carry certain local broadcast stations
because of their subscribers' preferences for the cable services carried
in their place, one would expect that all cable programming services would
have ratings exceeding those of broadcasters not carried. That is simply
not the case.

The evidence on remand also indicated that the growth of cable
systems' market power proceeded apace. The trend towards greater horizontal
concentration continued, driven by "[e]nhanced growth prospects for advertising
sales." Paul Kagan Assocs., Inc, Cable TV Advertising 1 (Sept. 30, 1994)
(App. 301). By 1994, the 10 largest MSO's controlled 63 percent of cable
systems, Notice of Inquiry, In re Annual Assessment of the Status of
Competition in the Market for Delivery of Video Programming, 10 FCC
Rcd. 7805, 7819-7820, ¶79 (1995),a figure projected to have risen
to 85 percent by the end of 1996. DAE Vol. VII.D, Exh. 80, at 1 (Turner
Broadcasting memo); Noll Declaration ¶26 (App. 1017). MSO's began
to gain control of as many cable systems in a given market as they could,
in a trend known as "clustering." JSCR ¶¶150-153 (App. 1311-1313).
Cable systems looked increasingly to advertising (and especially local
advertising) for revenue growth, see, e.g., Paul Kagan Associates,
Inc., Cable TV Advertising 1 (July 28, 1993) (App. 251); 1 R. Bilotti,
D. Hansen, & R. MacDonald, The Cable Television Industry 94-97 (Mar.
8, 1993) (DAE Vol. VII.K, Exh. 232, at 94-97) ("Local advertising revenue
is an exceptional incremental revenue opportunity for the cable television
industry") Memo from Arts & Entertainment Network, dated Oct. 26, 1992,
p. 2 (DAE Vol. VII.K, Exh. 235) (discussing "huge growth on the horizon"
for spot advertising revenue), and cable systems had increasing incentives
to drop local broadcasters in favor of cable programmers (whether affiliated
or not). See Noll Declaration ¶¶29-31 (App. 1018-1020). The vertical
integration of the cable industry also continued, so by 1994, MSO's serving
about 70 percent of the Nation's cable subscribers held equity interests
in cable programmers. See In re Implementation of Section 19 of Cable
Television Protection and Competition Act of 1992, First Report, 9
FCC Rcd 7442, 7526, ¶167, and nn. 455, 457 (1994); id., app.
G, tables 9-10; Top 100 MSO's as of October 1, 1994 (DAE Vol. VII.K, Exh.
266); see also JSCR ¶¶199, 204 (App. 1334, 1336). The FTC study
the dissent cites, post, at 15, takes a skeptical view of the potential
for cable systems to engage in anticompetitive behavior, but concedes the
risk of anticompetitive carriage denials is "most plausible" when "the
cable system's franchise area is large relative to the local area served
by the affected broadcast station," Reply Comment of FTC, at 20 (App. 177),
and when "a system's penetration rate is both high and relatively unresponsive
to the system's carriage decisions," id., at 18 (App. 175). That
describes "precisely what is happening" as large cable operators expand
their control over individual markets through clustering. Second Meek Declaration
¶35 (App. 1867). As they do so, they are better able to sell their
own reach to potential advertisers, and to limit the access of broad cast
competitors by denying them access to all or substantially all the cable
homes in the market area. Ibid.; accord Noll Declaration ¶24
(App. 1015).

This is not a case in which we are called upon to give our best
judgment as to the likely economic consequences of certain financial arrangements
or business structures, or to assess competing economic theories and predictive
judgments, as we would in a case arising, say, under the antitrust laws.
"Statutes frequently require courts to make policy judgments. The Sherman
Act, for example, requires courts to delve deeply into the theory of economic
organization." See Holder v. Hall,512
U.S. 874, 966 (1994) (separate opinion of Stevens, J.). The issue before
us is whether, given conflicting views of the probable development of the
television industry, Congress had substantial evidence for making the judgment
that it did. We need not put our imprimatur on Congress' economic theory
in order to validate the reasonableness of its judgment.

The harm Congress feared was that stations dropped or denied carriage
would be at a "serious risk of financial difficulty," 512 U. S., at 667,
and would "deteriorate to a substantial degree or fail altogether." Id.,
at 666. Congress had before it substantial evidence to support its conclusion.
Congress was advised the viability of a broadcast station depends to a
material extent on its ability to secure cable carriage. JSCR ¶¶597-617,
667-670, 673 (App. 1544-1553, 1580-1581, 1582-1583). One broadcast industry
executive explained it this way:

"Simply put, a television station's
audience size directly translates into revenue--large audiences attract
larger revenues, through the sale of advertising time. If a station is
not carried on cable, and thereby loses a substantial portion of its audience,
it will lose revenue. With less revenue, the station can not serve its
community as well. The station will have less money to invest in equipment
and programming. The attractiveness of its programming will lessen, as
will its audience. Revenues will continue to decline, and the cycle will
repeat." Hearing on Competitive Issues, at 526-527 (statement of Gary Chapman)
(App. 1600).

See also JSCR ¶¶589-591 (App. 1542-1543); id., ¶625-633,
636, 638-640 (App. 1555-1563) (repositioning). Empirical research in the
record before Congress confirmed the " `direct correlation [between] size
in audience and station [advertising] revenues,' " id., ¶591
(App. 1543)), and that viewership was in turn heavily dependent on cable
carriage. See id., ¶¶589-596 (App. 1542-1544).

Considerable evidence, consisting of statements compiled from
dozens of broadcasters who testified before Congress and the FCC, confirmed
that broadcast stations had fallen into bankruptcy, see id., ¶¶659,
661, 669, 671-672, 676, 681 (App. 1576, 1578, 1581-1582, 1584, 1587), curtailed
their broadcast operations, see id., ¶¶589, 692, 695,
697, 703-704 (App. 1542, 1591-1600), and suffered serious reductions in
operating revenues as a result of adverse carriage decisions by cable systems.
See id., ¶¶618-620, 622-623) (App. 1553-1555). The record
also reflected substantial evidence that stations without cable carriage
encountered severe difficulties obtaining financing for operations, reflecting
the financial markets' judgment that the prospects are poor for broadcasters
unable to secure carriage. See, e.g., id., ¶¶302, 304,
581, 643-658 (App. 1382-1383, 1538-1539, 1564-1576); see also Declaration
of David Schutz ¶¶6, 15-16, 18, 43 (App. 640-641, 644-646, 654);
Noll Declaration ¶¶36-42 (App. 1024-1029); Haring Declaration
¶¶21-26 (App. 1099-1102); Second Meek Declaration ¶11 (App.
1858); Declaration of Jeffrey Rohlfs ¶6 (App. 1157-1158). Evidence
before Congress suggested the potential adverse impact of losing carriage
was increasing as the growth of clustering gave MSO's centralized control
over more local markets. See JSCR ¶¶150-153 (App. 1311-1313).
Congress thus had ample basis to conclude that attaining cable carriage
would be of increasing importance to ensuring a station's viability. We
hold Congress could conclude from the substantial body of evidence before
it that "absent legislative action, the free local off air broadcast system
is endangered." Senate Report, at 42.

The evidence assembled on remand confirms the reasonableness of
the congressional judgment. Documents produced on remand reflect that internal
cable industry studies

"clearly establis[h] the importance
of cable television to broadcast television stations. Because viewership
equates to ratings and in turn ratings equate to revenues, it is unlikely
that broadcast stations could afford to be off the cable system's line
up for any extended period of time." Memorandum from F. Lopez to T. Baxter
re: Adlink's Presentations on Retransmission Consent, dated June 14, 1993
(App. 2118).

Another study prepared by a large MSO in 1993 concluded that "[w]ith
cable penetration now exceeding 70% in many markets, the ability of a broadcast
television station to easily reach its audience through cable television
is crucial." Exhibit B to Haring Declaration, DAE Vol II.A (App. 2147).
The study acknowledged that even in a market with significantly below average
cable penetration, "[t]he loss of cable carriage could cause a significant
decrease in a station's ratings and a resulting loss in advertising revenues."
Ibid. (App. 2147). For an average market "the impact would be even
greater." Ibid. (App. 2149). The study determined that for a popular
station in a major television market, even modest reductions in carriage
could result in sizeable reductions in revenue. A 5 percent reduction in
cable viewers, for example, would result in a $1.48 million reduction in
gross revenue for the station. (App. 2156).

To be sure, the record also contains evidence to support a contrary
conclusion. Appellants (and the dissent in the District Court) make much
of the fact that the number of broadcast stations and their advertising
revenue continued to grow during the period without must carry, albeit
at a diminished rate. Evidence introduced on remand indicated that only
31 broadcast stations actually went dark during the period without must
carry (one of which failed after a tornado destroyed its transmitter),
and during the same period some 263 new stations signed on the air. Meek
Declaration ¶¶76-77 (App. 627-628). New evidence appellants produced
on remand indicates the average cable system voluntarily carried local
broadcast stations accounting for about 97 percent of television ratings
in noncable households. Declaration of Stanley Besen, Part III-D (App.
808). Appellants, as well as the dissent in the District Court, contend
that in light of such evidence, it is clear "the must carry law is not
necessary to assure the economic viability of the broadcast system as a
whole." NCTA Brief 18.

This assertion misapprehends the relevant inquiry. The question
is not whether Congress, as an objective matter, was correct to determine
must carry is necessary to prevent a substantial number of broadcast stations
from losing cable carriage and suffering significant financial hardship.
Rather, the question is whether the legislative conclusion was reasonable
and supported by substantial evidence in the record before Congress. Turner,
512 U. S., at 665-666. In making that determination, we are not to "re
weigh the evidence de novo, or to replace Congress' factual predictions
with our own." Id., at 666. Rather, we are simply to determine if
the standard is satisfied. If it is, summary judgment for defendants appellees
is appropriate regardless of whether the evidence is in conflict. We have
noted in another context, involving less deferential review than is at
issue here, that "`the possibility of drawing two inconsistent conclusions
from the evidence does not prevent . . . [a] finding from being supported
by substantial evidence.' " American Textile Mfrs. Institute, Inc.
v. Donovan,452
U.S. 490, 523 (1981) (citation omitted) (quoting Consolo v.
Federal Maritime Comm'n,383
U.S. 607, 620 (1966)).

Although evidence of continuing growth in broadcast could have
supported the opposite conclusion, a reasonable interpretation is that
expansion in the cable industry was causing harm to broadcasting. Growth
continued, but the rate of growth fell to a considerable extent during
the period without must carry (from 4.5 percent in 1986 to 1.7 percent
by 1992), and appeared to be tapering off further. JSCR ¶¶577-584
(App. 1537-1540); Meek Declaration ¶¶74-82 (App. 626-631); 910
F. Supp., at 790, App. 2. At the same time, "in an almost unprecedented
development," 5 FCC Rcd., at 5041, ¶¶153-154, stations began
to fail in increasing numbers. Meek Declaration ¶78 (App. 628) ("the
number of stations going dark began to escalate" after 1988) (emphasis
omitted); JSCR ¶¶659, 661, 669, 671-672, 676, 681 (App. 1576,
1581-1582, 1584, 1587). Broadcast advertising revenues declined in real
terms by 11 percent between 1986 and 1991, during a period in which cable's
real advertising revenues nearly doubled. See 910 F. Supp., at 790, app.
1. While these phenomena could be thought to stem from factors quite separate
from the increasing market power of cable (for example, a recession in
1990-1992), it was for Congress to determine the better explanation. We
are not at liberty to substitute our judgment for the reasonable conclusion
of a legislative body. See Turner, supra, at 665-666. It is true
the number of bankruptcies among local broadcasters was small; but Congress
could forecast continuance of the "unprecedented" five year downward trend
and conclude the station failures of 1985-1992 were, as Commissioner Quello
warned, the tip of the iceberg. A fundamental principle of legislation
is that Congress is under no obligation to wait until the entire harm occurs
but may act to prevent it. "An industry need not be in its death throes
before Congress may act to protect it from economic harm threatened by
a monopoly." Turner, supra, at 672 (Stevens, J., concurring in part
and concurring in judgment). As a Senate Committee noted in a Report on
the Cable Act, "we need not wait until widespread further harm has occurred
to the system of local broadcasting or to competition in the video market
before taking action to forestall such consequences. Congress is allowed
to make a rational predication of the consequences of inaction and of the
effects of regulation in furthering governmental interests." Senate Report,
at 60.

Despite the considerable evidence before Congress and adduced
on remand indicating that the significant numbers of broadcast stations
are at risk, the dissent believes yet more is required before Congress
could act. It demands more information about which of the dropped broadcast
stations still qualify for mandatory carriage, post, at 13; about
the broadcast markets in which adverse decisions take place, post,
at 14; and about the features of the markets in which bankrupt broadcast
stations were located prior to their demise. Post, at 19. The level
of detail in factfinding required by the dissent would be an improper burden
for courts to impose on the Legislative Branch. That amount of detail is
as unreasonable in the legislative context as it is constitutionally unwarranted.
"Congress is not obligated, when enacting its statutes, to make a record
of the type that an administrative agency or court does to accommodate
judicial review." Turner, 512 U. S., at 666 (plurality opinion).

We think it apparent must carry serves the Government's interests
"in a direct and effective way." Ward, 491 U. S., at 800. Must carry
ensures that a number of local broadcasters retain cable carriage, with
the concomitant audience access and advertising revenues needed to support
a multiplicity of stations. Appellants contend that even were this so,
must carry is broader than necessary to accomplish its goals. We turn to
this question.

The second portion of the O'Brien inquiry concerns the fit between
the asserted interests and the means chosen to advance them. Content neutral
regulations do not pose the same "inherent dangers to free expression,"
Turner, supra, at 661, that content based regulations do, and thus
are subject to a less rigorous analysis, which affords the Government latitude
in designing a regulatory solution. See, e.g.,Ward, 491
U. S., at 798-799, n. 6. Under intermediate scrutiny, the Government may
employ the means of its choosing " `so long as the . . . regulation promotes
a substantial governmental interest that would be achieved less effectively
absent the regulation,' " and does not " `burden substantially more speech
than is necessary to further' " that interest. Turner, supra, at
662 (quoting Ward,supra, at 799).

The must carry provisions have the potential to interfere with
protected speech in two ways. First, the provisions restrain cable operators'
editorial discretion in creating programming packages by "reduc[ing] the
number of channels over which [they] exercise unfettered control." Turner,
512 U. S., at 637. Second, the rules "render it more difficult for cable
programmers to compete for carriage on the limited channels remaining."
Ibid.

Appellants say the burden of must carry is great, but the evidence
adduced on remand indicates the actual effects are modest. Significant
evidence indicates the vast majority of cable operators have not been affected
in a significant manner by must carry. Cable operators have been able to
satisfy their must carry obligations 87 percent of the time using previously
unused channel capacity (Declaration of Harry Shooshan III, ¶14 (App.
692)); 94.5 percent of the 11,628 cable systems nationwide have not had
to drop any programming in order to fulfill their must carry obligations;
the remaining 5.5 percent have had to drop an average of only 1.22 services
from their programming, id., ¶15 (App. 692); and cable operators
nationwide carry 99.8 percent of the programming they carried before enactment
of must carry. Id., ¶21 (App. 694-695). Appellees note that
only 1.18 percent of the approximately 500,000 cable channels nationwide
is devoted to channels added because of must carry, see id., ¶11(b)
(App. 688-689); weighted for subscribership, the figure is 2.4 percent.
910 F. Supp., at 780 (Williams, J., dissenting). Appellees contend the
burdens of must carry will soon diminish as cable channel capacity increases,
as is occurring nationwide. NAB Brief 45; see also 910 F. Supp., at 746-747.

We do not understand appellants to dispute in any fundamental
way the accuracy of those figures, only their significance. See NCTA Brief
46; id., at 44-49; Time Warner Brief 38-45; Turner Brief 33-42.
They note national averages fail to account for greater crowding on certain
(especially urban) cable systems, see Time Warner Brief 41, 43; Turner
Brief 41, and contend that half of all cable systems, serving two thirds
of all cable subscribers, have no available capacity, NCTA Brief 45; Turner
Brief 34; Time Warner Brief 42, n. 58. Appellants argue that the rate of
growth in cable programming outstrips cable operators' creation of new
channel space, that the rate of cable growth is lower than claimed, Turner
Brief 39, and that must carry infringes First
Amendment rights now irrespective of future growth. Turner Brief 40;
Reply Brief for Appellants Turner Broadcasting System, Inc., et al. 12-13.
Finally, they say that regardless of the percentage of channels occupied,
must carry still represents "thousands of real and individual infringements
of speech." Time Warner Brief 44.

While the parties' evidence is susceptible of varying interpretations,
a few definite conclusions can be drawn about the burdens of must carry.
It is undisputed that broadcast stations gained carriage on 5,880 channels
as a result of must carry. While broadcast stations occupy another 30,006
cable channels nationwide, this carriage does not represent a significant
First
Amendment harm to either system operators or cable programmers because
those stations were carried voluntarily before 1992, and even appellants
represent, Tr. of Oral Arg. 6, that the vast majority of those channels
would continue to be carried in the absence of any legal obligation to
do so. See Turner, supra, at 673, n. 6 (Stevens, J., concurring
in part and concurring in judgment). The 5,880 channels occupied by added
broadcasters represent the actual burden of the regulatory scheme. Appellants
concede most of those stations would be dropped in the absence of must
carry, Tr. of Oral Arg. 6, so the figure approximates the benefits of must
carry as well.

Because the burden imposed by must carry is congruent to the benefits
it affords, we conclude must carry is narrowly tailored to preserve a multiplicity
of broadcast stations for the 40 percent of American households without
cable. Cf. Ward, 491 U. S., at 799, n. 7 ("the essence of narrow
tailoring" is "focus[sing] on the evils the [Government] seeks to eliminate
. . . [without] significantly restricting a substantial quantity of speech
that does not create the same evils"); Community for Creative Non Violence,
468 U. S., at 297 ("None of [the regulation's] provisions appears unrelated
to the ends that it was designed to serve."). Congress took steps to confine
the breadth and burden of the regulatory scheme. For example, the more
popular stations (which appellants concede would be carried anyway) will
likely opt to be paid for cable carriage under the "retransmission consent"
provision of the Cable Act; those stations will nonetheless be counted
towards systems' must carry obligations. Congress exempted systems of 12
or fewer channels, and limited the must carry obligation of larger systems
to one third of capacity, 47
U.S.C. § 534(b)(1); see also §§535(b)(2)%(3); allowed
cable operators discretion in choosing which competing and qualified signals
would be carried, §534(b)(2); and permitted operators to carry public
stations on unused public, educational, and governmental channels in some
circumstances, §535(d).

Appellants say the must carry provisions are overbroad because
they require carriage in some instances when the Government's interests
are not implicated: the must carry rules prohibit a cable system operator
from dropping a broadcaster "even if the operator has no anticompetitive
motives, and even if the broadcaster that would have to be dropped . .
. would survive without cable access." 512 U. S., at 683 (O'Connor, J.,
dissenting). See also NCTA Brief 25-26. We are not persuaded that either
possibility is so prevalent that must carry is substantially overbroad.
As discussed supra, at 18, cable systems serving 70 percent of subscribers
are vertically integrated with cable programmers, so anticompetitive motives
may be implicated in a majority of systems' decisions not to carry broadcasters.
Some broadcasters will opt for must carry although they would not suffer
serious financial harm in its absence. See Time Warner Brief 35-36, and
n. 49. Broadcasters with stronger finances tend, however, to be popular
ones that ordinarily seek payment from cable systems for transmission,
so their reliance on must carry should be minimal. It appears, for example,
that no more than a few hundred of the 500,000 cable channels nationwide
are occupied by network affiliates opting for must carry (see Time Warner
Brief 35-36, and n. 49), a number insufficient to render must carry "substantially
broader than necessary to achieve the government's interest." Ward,
491 U. S., at 800. Even on the doubtful assumption that a narrower but
still practicable must carry rule could be drafted to exclude all instances
in which the Government's interests are not implicated, our cases establish
that content neutral regulations are not "invalid simply because there
is some imaginable alternative that might be less burdensome on speech."
Albertini, 472 U. S., at 689; accord Ward, supra, at 797;
Community for Creative Non Violence, supra, at 299.

Appellants posit a number of alternatives in an effort to demonstrate
a less restrictive means to achieve the Government's aims. They ask us,
in effect, to "sif[t] through all the available or imagined alternative
means of regulating [cable television] in order to determine whether the
[Government's] solution was `the least intrusive means' of achieving the
desired end," an approach we rejected in Ward v. Rock Against
Racism, 491 U. S., at 797. This " `less restrictive alternative analysis
. . . has never been a part of the inquiry into the validity' " of content
neutral regulations on speech. Ibid. (quoting Regan v. Time,
Inc.,468
U.S. 641, 657 (1984) (plurality opinion) (ellipses in original)). Our
precedents establish that when evaluating a content neutral regulation
which incidentally burdens speech, we will not invalidate the preferred
remedial scheme because some alternative solution is marginally less intrusive
on a speaker's First Amendment interests. "So long as the means chosen
are not substantially broader than necessary to achieve the government's
interest, . . . the regulation will not be invalid simply because a court
concludes that the government's interest could be adequately served by
some less speech restrictive alternative." Ward, supra, at 800.
See generally ibid. (holding regulation valid although Court of
Appeals had identified less restrictive "alternative regulatory methods"
of controlling volume at concerts); Albertini, supra, at 689 (upholding
validity of order barring a person from a military base, although excluding
barred person was not "essential" to preserving security and there were
less speech restrictive means of attaining that end); Community for
Creative Non Violence, supra, at 299 (overnight camping ban upheld
although "there [were] less speech restrictive alternatives" of satisfying
interest in preserving park lands); Members of City Council of Los Angeles
v. Taxpayers for Vincent,466
U.S. 789, 815-817 (1984) (stating that although making exceptions to
ban on posting signs on public property "would have had a less severe effect
on expressive activity," they were not "constitutionally mandated"). It
is well established a regulation's validity "does not turn on a judge's
agreement with the responsible decisionmaker concerning the most appropriate
method for promoting significant government interests." Albertini, supra,
at 689.

In any event, after careful examination of each of the alternatives
suggested by appellants, we cannot conclude that any of them is an adequate
alternative to must carry for promoting the Government's legitimate interests.
First among appellants' suggested alternatives is a proposal to revive
a more limited set of must carry rules, known as the "Century rules"
after the 1987 court decision striking them down, see Century Communications
Corp. v. FCC, 835 F. 2d 292. Those rules included a minimum
viewership standard for eligibility and limited the must carry obligation
to 25 percent of channel capacity. The parties agree only 14 percent of
broadcasters added to cable systems under the Cable Act would be eligible
for carriage under the Century rules. See Turner Brief 45; Brief
for Federal Appellees 45; NAB Brief 49; see also Declaration of Gregory
Klein ¶¶21-25 (App. 1141-1143). The Century rules, for
the most part, would require carriage of the same stations a system would
carry without statutory compulsion. While we acknowledge appellants' criticism
of any rationale that more is better, the scheme in question does not place
limitless must carry obligations on cable system operators. In the final
analysis this alternative represents nothing more than appellants' " `[dis]agreement
with the responsible decisionmaker concerning' . . . the degree to which
[the Government's] interests should be promoted." Ward, supra, at
800 (quoting Albertini, supra, at 689); Community for Creative
Non Violence, 468 U. S., at 299. Congress legislated in the shadow
of Quincy and Century Communications. Its deliberations reflect
awareness of the must carry rules at issue in those cases (Senate Report,
at 39-41, 62); indeed, in drafting the must carry provisions of the Cable
Act, Congress made specific comparisons to the rules struck down in Quincy
Cable TV, Inc v. FCC, 768 F. 2d 1434 (1985). See House Report,
at 65-66; Senate Report, at 61. The record reflects a deliberate congressional
choice to adopt the present levels of protection, to which this Court must
defer.

The second alternative appellants urge is the use of input selector
or "A/B" switches, which, in combination with antennas, would permit viewers
to switch between cable and broadcast input, allowing cable subscribers
to watch broadcast programs not carried on cable. Congress examined the
use of A/B switches as an alternative to must carry and concluded it was
"not an enduring or feasible method of distribution and . . . not in the
public interest." §2(a)(18). The data showed that: many households
lacked adequate antennas to receive broadcast signals, JSCR ¶¶
724, 725, 768 (App. 1609-1610, 1634); A/B switches suffered from technical
flaws, id., ¶¶718, 721, 738-739, 751-755, 761 (App. 1606,
1608, 1617-1618, 1624-1626, 1630); viewers might be required to reset channel
settings repeatedly in order to view both UHF and cable channels, House
Report, at 54; and installation and use of the switch with other common
video equipment (such as videocassette recorders) could be "cumbersome
or impossible." Senate Report, at 45, and nn. 115-116; House Report, at
54, and nn. 60-61; see also JSCR ¶¶746, 750, 758-767 (App. 1622,
1623, 1629-1634). Even the cable industry trade association (one of appellants
here) determined that "the A/B switch is not a workable solution to the
carriage problem." Senate Report, at 45, House Report, at 54. The group's
engineering committee likewise concluded the switches suffered from technical
problems and that no solution "appear[ed] imminent." Joint Petition for
Reconsideration in MM Docket No. 85-349, pp. 6-8 (Dec. 17, 1986) (App.
1606-1607); see also Senate Report, at 45, and n. 115; House Report, at
54, and n. 60; Must Carry, Hearing before the Subcommittee on Communications
of the Senate Committee on Commerce, Science, and Transportation, 100th
Cong., 1st Sess., 80 (1989) (statement of Preston Padden) (App. 1608);
Hearings on Cable Television Regulation, at 901, n. 84 (statement of James
B. Hedlund) (App. 1608).

Congress also had before it "considerable evidence," including
two empirical studies, that "it is rare for [cable subscribers] ever to
switch to receive an over the air signal," Senate Report, at 45; House
Report, at 54, and n. 62. A 1991 study demonstrated that even "after several
years of a government mandated program of providing A-B switches [to] consumers
and a simultaneous education program on their use," NAB, A-B Switch Availability
and Use (Sept. 23, 1991) (App. 132) and after FCC mandated technical improvements
to the switch, App. 129, only 11.7 percent of all cable connected television
sets were attached to an antenna and had an A/B switch. Id., at
131. Of the small number of households possessing the switch, an even smaller
number (only 38 percent) had ever used it. Ibid. See House Report,
at 54, and nn. 62-63. Congress' decision that use of A/B switches was not
a real alternative to must carry was a reasonable one based on substantial
evidence of technical shortcomings and lack of consumer acceptance. The
reasonableness of its judgment was confirmed by additional evidence on
remand that A/B switches can create signal interference and add complexity
to video systems, factors discouraging their use. See Declaration of Eldon
Haakinson ¶¶45-54 (App. 602-609); Supplemental Declaration of
Eldon Haakinson ¶¶8-10 (App. 2025-2026); Memorandum from W. Cicora
to L. Yaeger et al., dated June 25, 1993, p. 5 (channels may have to be
reset every time A/B switch is used) (App. 246).

Appellants also suggest a leased access regime, under which both
broadcasters and cable programmers would have equal access to cable channels
at regulated rates. Turner Brief 46-47. Appellants do not specify what
kind of regime they would propose, or how it would operate, making this
alternative difficult to compare to the must carry rules. Whatever virtues
the proposal might otherwise have, it would reduce the number of cable
channels under cable systems' control in the same manner as must carry.
Because this alternative is aimed solely at addressing the bottleneck control
of cable operators, it would not be as effective in achieving Congress'
further goal of ensuring that significant programming remains available
for the 40 percent of American households without cable. Indeed, unless
the number of channels set aside for local broadcast stations were to decrease
(sacrificing Congress' interest in preserving a multiplicity of broadcasters),
additional channels would have to be set aside for cable programmers, further
reducing the channels under the systems' control. Furthermore, Congress
was specific in noting that requiring payment for cable carriage was inimical
to the interests it was pursuing, because of the burden it would impose
on small broadcasters. See House Report, at 51; Senate Report, at 43, 45.
Congress specifically prohibited such payments under the Cable Act. 47
U.S.C. §§ 534(b)(10), 535(i).

Appellants next suggest a system of subsidies for financially
weak stations. Appellants have not proposed any particular subsidy scheme,
so it is difficult to determine whether this option presents a feasible
means of achieving the Government's interests, let alone one preferable
to must carry under the First
Amendment. To begin with, a system of subsidies would serve a very
different purpose than must carry. Must carry is intended not to guarantee
the financial health of all broadcasters, but to ensure a base number of
broadcasters survive to provide service to noncable households. Must carry
is simpler to administer and less likely to involve the Government in making
content based determinations about programming. The must carry rules distinguish
between categories of speakers based solely on the technology used to communicate.
The rules acknowledge cable systems' expertise by according them discretion
to determine which broadcasters to carry on reserved channels, and (within
the Cable Act's strictures) allow them to choose broadcasters with a view
to offering program choices appealing to local subscribers. Appellants'
proposal would require the Government to develop other criteria for giving
subsidies and to establish a potentially elaborate administrative structure
to make subsidy determinations.

Appellants also suggest a system of antitrust enforcement or an
administrative complaint procedure to protect broadcasters from cable operators'
anticompetitive conduct. See Turner Brief 47-48. Congress could conclude,
however, that the considerable expense and delay inherent in antitrust
litigation, and the great disparities in wealth and sophistication between
the average independent broadcast station and average cable system operator,
would make these remedies inadequate substitutes for guaranteed carriage.
The record suggests independent broadcasters simply are not in a position
to engage in complex antitrust litigation, which involves extensive discovery,
significant motions practice, appeals, and the payment of high legal fees
throughout. See JSCR ¶¶556-576 (App. 1528-1537); Meek Declaration
¶58 (Record, Defendants' Joint Submission of Expert Affidavits and
Reports in Support of Motion for Summary Judgment, Vol. II.A, Exh. 2).
An administrative complaint procedure, although less burdensome, would
still require stations to incur considerable expense and delay before enforcing
their rights. As it is, some public stations have been forced by limited
resources to forgo pursuing administrative complaints under the Cable Act
to obtain carriage. See Declaration of Carolyn Lewis ¶13 (App. 548-549);
Declaration of John Beabout ¶11 (App. 526-527). Those problems would
be compounded if instead of proving entitlement under must carry, the station
instead had to prove facts establishing an antitrust violation.

There is a final argument made by appellants that we do not reach.
Appellant Time Warner Entertainment raises in its brief a separate First
Amendment challenge to a subsection of the Cable Act, 47
U.S.C. § 534(c), that requires carriage on unfilled must carry
channels of low power broadcast stations if the FCC determines that the
station's programming "would address local news and informational needs
which are not being adequately served by full power television broadcast
stations because of the geographic distance of such full power stations
from the low power station's community of license." §534(h)(2)(B).
We earlier reserved this question and invited the District Court to address
it on remand. See Turner, 512 U. S., at 643-644, n. 6. Because this
question has received "only the most glancing" attention, ibid.,
from the District Court and the parties, we have no more information about
"the operation of, and justifications for, the low power broadcast provisions,"
ibid., on which to base an informed determination than we did on
the earlier appeal. The District Court's primary opinion disposed of the
question in a perfunctory discussion, 910 F. Supp., at 750-751; and the
dissent explicitly declined to reach the question. Id., at 789.
The issue has received even less attention from the parties. It was not
addressed in the jurisdictional statement, the motions to affirm, or the
appellants' oppositions to the motions to affirm. In over 400 pages of
merits briefs, the parties devoted a total of four paragraphs (two of which
were relegated to footnotes) to conclusory argumentation on this subject,
largely concerning not the merits of the question but whether it was even
properly before us. On this state of the record we have insufficient basis
to make an informed judgment on this discrete issue. Even if the issue
is "fairly included" in the broadly worded question presented, it is tangential
to the main issue, and prudence dictates that we not decide this question
based on such scant argumentation. See Socialist Labor Party v.
Gilligan,406
U.S. 583, 588-589 n. 2 (1972); Teamsters v. Denver Milk Producers,
Inc., 334
U.S. 809 (1948) (per curiam); see also Carducci v. Regan,
714 F. 2d 171, 177 (CADC 1983) (Scalia, J.).

Judgments about how competing economic interests are to be reconciled
in the complex and fast changing field of television are for Congress to
make. Those judgments "cannot be ignored or undervalued simply because
[appellants] cas[t] [their] claims under the umbrella of the First
Amendment." Columbia Broadcasting v. Democratic National
Committee, 412 U. S., at 103. Appellants' challenges to must carry
reflect little more than disagreement over the level of protection broadcast
stations are to be afforded and how protection is to be attained. We cannot
displace Congress' judgment respecting content neutral regulations with
our own, so long as its policy is grounded on reasonable factual findings
supported by evidence that is substantial for a legislative determination.
Those requirements were met in this case, and in these circumstances the
First
Amendment requires nothing more. The judgment of the District Court
is affirmed.